Thursday, April 16, 2015

The U.S. Sentencing Commission recently announced the amendments to the sentencing guidelines that it will propose to Congress this year. The Commission explained in a press release that the amendments cover a few subjects, but the topics are highlighted by amendments to guidelines covering economic crimes like fraud. Anyone with an interest and a few hours to burn should watch the archived video of the public hearing (it was highly educational).

Chief Judge Patti B. Saris, chair of the Commission, explained that the Commission had closely analyzed the application of the fraud guideline, noting a problem area at the top of the loss table in U.S.S.G. § 2B1.1(b)(1). In describing the proposed amendments, she stated: “[t]hese amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss.” So under the new amendments, a defendant who took the life savings from two victims might be punished more harshly under the amendments than a defendant who took $100 from hundreds of victims.

The Commission also proposed amendments that reclassify hydrocodone as a schedule II drug and that further explain how a defendant can get the minor role reduction. There are similarly other amendments that we might cover in more detail in future posts.

But also relevant to economic crimes, the Commission recommended that the loss tables for various guidelines be updated for inflation. For example, under § 2B1.1(b)(1), a defendant who embezzles $200,000 right now will have 12 levels added to their base offense level under the loss table. But the threshold for a 12-level increase is being raised from $200,000 to $250,000. So the same offense will be two offense levels lower if the guidelines go into effect after November 1, 2015. This is, of course, subject to change if Congress intervenes.

Nonetheless, anyone with a client charged with an economic crime should be aware of how these new amendments might affect the client’s sentence (and plan accordingly). The amendments to the economic-crime guidelines could even combine with the inflationary adjustments to the loss tables and doubly help your clients. If a change or changes will benefit your client, you should shoot for a sentencing date after November 1, 2015. Or you could try to negotiate into a plea agreement that proposed changes to the guidelines should apply in your case. Either way, these amendments should be on your radar when planning any case strategies for economic offenses in the next few months.